Citation NR: 9735069
Decision Date: 10/17/97 Archive Date: 10/24/97
DOCKET NO. 95-19 737 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Whether new and material evidence has been received to reopen
the claim for service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. E. Padoll, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1970 to
July 1972.
This appeal comes before the Board of Veterans’ Appeals
(Board) from a September 1994 regional office (RO) rating
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he developed PTSD as a result of
his military service. He states that during service he was
stationed in Vietnam. Moreover, he states that during his
tour of duty in Vietnam he witnessed stressful events that
have left an impact on his present life. Furthermore, the
veteran states that he has submitted new and material
evidence in his case. As such, the veteran contends that
service connection for PTSD should be granted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the evidence supports reopening the
veteran’s claim for entitlement to service connection for
PTSD.
FINDINGS OF FACT
1. The veteran’s claim for service connection for PTSD was
finally denied in an October 1981 RO rating decision.
2. The evidence added to the record since the October 1981
rating decision consists of outpatient treatment records,
private medical records, hospitalization reports, and hearing
testimony which are so significant that they must be
considered in order to fairly decide the merits of the claim.
CONCLUSIONS OF LAW
1. Evidence received since the RO denied entitlement to
service connection for PTSD in October 1981 is new and
material. 38 U.S.C.A. §§ 5107, 5108, 7105; 38 C.F.R.
§ 3.156(a) (1996).
2. The decision of the RO in October 1981 denying
entitlement to service connection for PTSD has now been
reopened. 38 U.S.C.A. §§ 1110, 5107, 5108, 7015; 38 C.F.R.
§ 3.304(a) (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that in a decisions dated in October 1981,
the veteran’s claim for service connection for PTSD was
denied on the basis that there was no confirmed diagnosis of
PTSD at that time. In an attempt to reopen his claim, the
veteran has submitted Department of Veterans Affairs (VA)
outpatient treatment records, private medical records, VA
hospitalization reports, VA examination reports, and hearing
testimony. The private medical records, as well as the VA
outpatient treatment records and examination reports have
revealed symptoms and diagnosis of PTSD. Thus, as there is
now a diagnosis of PTSD as a psychiatric disorder, the
question of whether this disorder is related to service
arises. This evidence constitutes new and material evidence
to reopen the claim. The Board finds that a re-evaluation of
the evidence of record, particularly in light of the medical
evidence, is in order.
ORDER
New and material evidence having been received to reopen the
claim for service connection for PTSD; the benefit sought on
appeal is allowed to this extent.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
The Board notes that where new and material evidence has been
submitted, the case is reopened and it must be evaluated on
the merits of the veteran’s claim in light of all the
evidence, both old and new. Manio v. Derwinski, 1 Vet. App.
140 (1991). Moreover, the United States Court of Veterans
Appeals (Court) has held that if the Board’s initial de novo
consideration of the merits of a reopened claim might be
prejudicial to the appellant, the case must be remanded to
the RO for initial de novo consideration. Bernard v. Brown,
4 Vet. App. 384 (1995). That is the situation here.
Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the disorder, credible
supporting evidence that the claimed in-service stressor(s)
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed in-
service stressor. 38 C.F.R. § 3.304(f) (1996).
The RO must attempt to verify the alleged stressors with the
U.S. Armed Services Center for Research of Unit Records
(USASCRUR). The record reveals that the veteran has provided
the RO with some details and incidents pertaining to what he
claims are stressors. In addition, the Board notes that the
RO submitted a letter to USASCRUR in December 1993. However,
all of the details provided by the veteran were not
incorporated into the letter. Furthermore, in it’s response,
dated in June 1994, USASCRUR stated that additional
information was needed from the veteran.
Moreover, USASCRUR provided the RO with specific information
necessary to confirm the veteran’s stressors and they
provided the RO with a variety of different ways to obtain
the information. The record reveals, though, that the RO has
neither attempted to contact the veteran and request that he
provide additional information, nor has the RO attempted to
obtain information through any of the other sources provided
by USASCRUR. Also, the veteran’s representative has argued
that the veteran should be afforded an opportunity to provide
additional information in support of his claim.
The provisions of the VA Adjudication Procedure Manual M21-1
(Manual M21-1) pertaining to the adjudication of PTSD provide
that, “where records available to the rating board do not
provide objective or supportive evidence of the alleged in-
service traumatic stressor, it is necessary to develop this
evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis
added). Accordingly, as the development outlined in Manual
M21-1 includes providing the information submitted by the
veteran to the USASCRUR, such development is mandatory.
Therefore, pursuant to VA’s duty to assist the veteran in the
development of facts pertinent to his claim under 38 U.S.C.A.
§ 5107(a); 38 C.F.R. § 3.103(a) (1996), the Board is
deferring adjudication of the issue of entitlement to service
connection for PTSD pending a remand of the case to the RO
for further development as follows:
1. As was suggested by the USASCRUR
Director in his June 1994 letter, the RO
should request Morning Reports (MR’s), DA
Form 1, from the Director, National
Archives and Records Administration
(NARA), ATTN: NCPMA-O, 9700 Page
Boulevard, St. Louis, Missouri 63132.
The RO should also request a copy of the
veteran’s DA Form 20, a copy of his
Official Military Personnel File (OMPF)
from NARA, ATTN: U.S. Army Liaison, in
St. Louis.
2. After obtaining the above requested
information from the Director of NARA,
the RO should forward it together with
copies of the veteran’s obtained service
personnel records, a copy of his record
of service (DD-214), and a copy of his
complete stressor statement, to the U.S.
Armed Service Center for Research of Unit
Records (USASCRUR), 7798 Cissna Road,
Springfield, Virginia 22150.
The USASCRUR should be requested to
verify the occurrence of the incidents
and any indication of the veteran’s
involvement therein, and whether the
veteran engaged in combat. If the
USASCRUR is unable to provide
verification of the incidents, it should
be asked to identify any agency or
department that could provide such
information and the RO should conduct
follow-up inquires accordingly. Any
obtained information should be associated
with the claims file.
3. Following receipt of the USASCRUR’s
reports, and the completion of any
additional development warranted or
suggested by that agency, the RO should
prepare a report detailing the nature of
any combat action, or in-service
stressful event, verified by the
USASCRUR. If no combat stressor has been
verified, the RO should so state in its
report. This report is then to be added
to the claims folder.
4. If a stressor or stressors have been
verified, then, and only then, should the
RO schedule the veteran for a psychiatric
examination by a board of two VA
psychiatrists who have not previously
seen or treated him. Any appropriate
studies, including PTSD sub scales are to
be performed. The claims file and a
separate copy of this remand must be made
available to and reviewed by the
examiners prior to conduction and
completion of their examinations. In
determining whether or not the veteran
has PTSD due to an in-service stressor,
the examiners are hereby notified that
only the verified history detailed in the
reports provided by the USASCRUR and/or
the RO may be relied upon.
If the examiners believe that PTSD is the
appropriate diagnosis, they must
specifically identify which stressor(s)
detailed in the USASCRUR’s and/or the
RO’s report is/are responsible for that
conclusion. The examiners should specify
(1) whether each alleged stressor found
to be established by the record was
sufficient to produce PTSD; (2) whether
the remaining diagnostic criteria to
support the diagnosis of PTSD have been
satisfied; and (3) whether there is a
link between the current symptomatology
and one or more of the in-service
stressors found to be established by the
RO and found to be sufficient to produce
PTSD by the examiners. Any and all
opinions expressed must be accompanied by
a complete rationale. The examiners must
assign a Global Assessment of Functioning
Score (GAF) which is consistent with the
American Psychiatric Association’s
Diagnostic and Statistical Manual of
Mental Disorders, and explain what the
assigned score means.
5. Following completion of the foregoing
the RO should review the claims file to
ensure that all of the foregoing
development has been completed. In
particular, the RO should review the
psychiatric examination reports to verify
that any diagnosis of PTSD was based on
the verified history provided by the
USASCRUR and/or the RO. If the examiners
relied upon a history which was not
verified, those examination reports must
be returned as inadequate for rating
purposes. The Board emphasizes that the
Court has held that a diagnosis of PTSD,
related to service, based on an
examination which relied upon an
unverified history is inadequate. West,
7 Vet. App. at 77.
6. After undertaking any development
deemed appropriate in addition to that
specified above, the RO should adjudicate
the issue of entitlement to service
connection for PTSD on a de novo basis,
with consideration of all the evidence of
record, without regard to the prior
denial.
If the benefit sought on appeal is not granted to the
veteran’s satisfaction, the RO should issue a supplemental
statement of the case. A reasonable period of time for a
response should be afforded.
Thereafter, the case should be returned to the Board for
final appellate review, if otherwise in order. By this
remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the veteran
until he is notified by the RO.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
- 2 -